B. S. BALAJI v. T. GOVINDARAJU — 1995 DIGILAW 577 (KAR)

H. N. TILHARI, J. ( 1 ) THIS is a revision under Section 18 of Karnataka Small causes Court's Act, 1964 though wrongly, it has been mentioned to be under Section 115 of the Code of Civil Procedure. This revision arises from the order dated 6-9-1995 passed by Sri B. M. Angadi, Additional Judge, Small Causes, Bangalore City in small Causes Suit No. 2949 of 1990 rejecting the applicant's application under Section 151 for being permitted to examine d. W. 2. The plaintiff-opposite party had filed a suit for recovery of money to the tune of Rs. 23,275/- alleging that the same had been borrowed by the first defendant in his capacity as the partner of the Maruti Trading Company. The defendant 2 filed a written statement challenging the plaintiff's case and taking the plea that the first defendant could not borrow money in the name of the firm without the consent of other partner and no consent of defendant 2 had ever been taken. The defendant 1 admitted the borrowing of the money as alleged in the plaint but he alleged that he borrowed the money for and on behalf of the company. The defendant 2 in such circumstances applied for permission to cross-examine the defendant 1 who had appeared in witness box as D. W. 2 particularly in the context of above fact and fact that the firm had been dissolved in the year 1987. The trial Court had taken the view that the defendant 2 has given and made certain admission on during the cross-examination by the plaintiff and it cannot be said that the defendant 2 has got right to cross-examine him. Taking this view, the Trial Court held that in its considered opinion the defendant 2 had not made out a case on any of the ground permitting him to cross-examine d. W. 2 and on this Court, application under Section 151 of the code of Civil Procedure, has been rejected. As mentioned earlier feeling aggrieved from the order of the Trial Court mentioned above, the defendant 2 has filed the revision in this Court describing the civil revision to be under Section 115. ( 2 ) I have heard Sri K. L. Manjunath, learned Counsel for revision petitioner and Sri G. Pappi Reddy learned Counsel for the respondent and applied my mind to their contentions. ( 2 ) I have heard Sri K. L. Manjunath, learned Counsel for revision petitioner and Sri G. Pappi Reddy learned Counsel for the respondent and applied my mind to their contentions. ( 3 ) SECTION 7 of the Code of Civil Procedure provides that provisions of the Code of Civil Procedure mentioned in that section and in Order 50 of the Code shall not apply to the proceeding and suits in Court constituted under Provincial small Causes Courts Act or to Court exercising Small Causes court's jurisdiction. Section 7 of the Civil Procedure Code reads as under:"7. Provincial Small Causes Courts. The following provisions shall not extend to Courts constituted under the provincial Small Causes Courts Act, 1887, or under the berar Small Causes Courts Law, 1905, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say: (a) So much of the body of the code as relates to: (i) suits excepted from the cognizance of a court of Small Causes; (ii) the execution of decrees in such suit; (iii) the execution of decrees against immovable property; and (b) The following sections, that is to say Sections 9, 91, 92, 94 and 95 so far as they authorise or relate to: (i) orders for the attachment of immovable property; (ii) injunctions; (iii) the appointment of a receiver of immovable property; or (iv) the interlocutory orders referred to in clause (c) of Sections 94, 96 to 112 and115". ( 4 ) A reading of Section 1 per se reveals that Section 115 shall not apply to the Courts exercising Small Causes Courts jurisdiction. Section 18 of the Karnataka Small Causes Courts act, 1964 contains provision for revision to this Court and if revision is maintainable under Section 18 of Small Causes court, then it may not be material, that wrong provision is referred in the present revision. Section 18 of the Karnataka Small Causes Courts act, 1964 contains provision for revision to this Court and if revision is maintainable under Section 18 of Small Causes court, then it may not be material, that wrong provision is referred in the present revision. Section 18 of the Karnataka Small Causes Courts Act reads as under:"section 18 revision of decrees and orders of Courts of small Causes The High Court for the purpose of satisfying itself, that a decree or order made in any case decided by a Court of Small Causes was according to law may call for the case and pass orders with respect thereto, as it thinks fit". Section 19 of the Karnataka Small Causes Courts Act provides for finality of decrees orders Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final. ( 5 ) READING of Section 18 of the Small Causes Courts Act per sereveals that a revision lies from a decree as well as from the order passed by the Small Causes Court in any case decided by it. ( 6 ) THE jurisdiction of this Court is confined to see and to examine whether the order that had been made in a case is according to law. In order to enable the Court to exercise its jurisdiction under Section 18 of the Karnataka Small Causes Courts Act, two things have to be shown and made out i. e. whether the order amounts to decree or it amounts to an order. If an order can be brought within the frame work of either of the expressions of decree or order then the revision may lie as it may amount to be a case decided. The expression "case decided" in the context of Section 115 has been interpreted but it has not been taken as analogous to the expression 'suit'. The case may include a suit but an order amounts to case decided even if it is interlocutory order, if some right of the parties is or has been decided the order, whether right involved in the suit or in relation to the proceedings under law. In paragraph 11 of the decision in the case of Major S. S. Khanna v Brig. In paragraph 11 of the decision in the case of Major S. S. Khanna v Brig. F. J. Dillon, their Lordships of the Supreme Court observed as under:"the expression "case" is a word of comprehensive import; it includes civil proceedings other than suits and is not restricted by anything contained in the section to the entirety of the proceedings in a Civil Court. To interpret the expression "case" as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence, which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. In this connection Their Lordships of the Supreme court have referred to certain parts of the observations of the Full Bench decision of the Allahabad High Court in the case of Buddhoo Lal and Another v Mewa Ram and observed that "it may be observed that the majority view of the High Court of Allahabad in Buddhoo Lai's case, supra, founded upon the supposition that even though the word "case" has a wide signification the jurisdiction of the High court can only be invoked from an order in a suit, where the suit and not a part of it is decided. Proceeded upon the fallacy that because the expression "case" includes a suit, in defining the limits of the jurisdiction conferred upon the high Court, the expression "suit" should be substituted in the section, when the order sought to be revised is an order passed in a suit. The expression "case" includes a suit, but in ascertaining the limits of the jurisdiction of the High court, there would be no warrant for equating it with a suit alone". ( 7 ) THE observations of the Lordships lead me to hold that really the case cannot be equated with the suit. It cannot be said that if some order has been passed determining the rights of the parties, even in relation to the suit such as right to examine or cross-examine cannot be a case decided as suit is pending and is not decided. The expression case decided has got nodoubt relation to decree or order used. The expressions used decree or order are material. The expression case decided has got nodoubt relation to decree or order used. The expressions used decree or order are material. What is decree and what is an order the expressions are not new to the members of the Bar or to the bench. Section 10 of the Karnataka Small Causes Act, makes provision for application of Code of Civil Procedure and it provided that the procedure prescribed in the code shall, save insofar as it otherwise provided by the code or by this Act, be the procedure followed in the Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. This provision read with Section 7 of the C. P. C. helps in holding that definition of the order as given in the C. P. C. can be applied in interpreting the expression 'order'. It does not-no doubt-refer to routine type of the orders. Sub-section 14 of Section 2 of Code of Civil Procedure defines the expression 'order' to mean the formal expression of any decision of a Civil Court which is not a decree. It means a decision of the Court even it is of small causes, if it does not amount to decree, may be taken to be an order. When we took as the expression decision, naturally it comes out from that expression when there is dispute about certain rights in between the parties and the Court gives a decision in record, if it does not amount to decree, it will always means to be an order. The decision of rights limited to the proceedings or in relation with the proceedings of the case, if there is dispute as to the right of a person in relation to certain proceedings and the Court gives decision thereon, it may also amount to be an order. Whether the defendant had a right to cross-examine the defendant 1 who was appearing as D. W. 2 before the Court though it is merely a small cause case. This right claimed by the plaintiff was disputed and the Court observed that the defendants had no right to cross-examine and rejected his application for permission to allow him to cross-examine. Whether the defendant had a right to cross-examine the defendant 1 who was appearing as D. W. 2 before the Court though it is merely a small cause case. This right claimed by the plaintiff was disputed and the Court observed that the defendants had no right to cross-examine and rejected his application for permission to allow him to cross-examine. In my opinion that order deciding the question as to the right of the defendant-2 to cross-examine D. W. 2 i. e. , defendant 1, it can be said to be an order amounting to be an interlocutory order but amounting to be a case decided. The suit might have been decided or might be pending. But right to cross-examine whether the parties are entitled to cross-examine a witness is a material right and if the Court decided the right against a party that there is no right vested in him to cross-examine, in my opinion such order amounts to be a case decided. In this view of the matter, in my opinion, the revision under Section 18 of Karnataka Small Causes Court's Act from this order is maintainable. What is to be looked into in order to decide is whether the Court will interfere with the order or not and whether decision has been given according to law or not, the expression" according to law is an important expression. ( 8 ) IN the case of Hari Shankar v Rao Girdharilal Chowdhury and Others , their Lordships of the Supreme Court were called upon to consider the meaning of the expression 'in accordance with law' and phrase "according to law" under section 35 of the Delhi Rent Control Act. In para 8 of Hari shankar's case, supra, their Lordships observed "the phrase 'according to law' refers to the decision as a whole, and is not to be equated to error of law or of fact simpliciter. It refers to the over all decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct errors of jurisdiction to which Section 115 is limited. In this decision their Lordships quoted with the approval of observations of Beaumount CJ. , in case of Bell and Co. , ltd. The section is thus framed to confer larger powers than the power to correct errors of jurisdiction to which Section 115 is limited. In this decision their Lordships quoted with the approval of observations of Beaumount CJ. , in case of Bell and Co. , ltd. v Waman Hemraj, wherein the learned Chief Justice made observations while dealing with Section 25 of the Provincial small Cause Courts Act. It is to be seen whether this order suffers from mistake of law and whether error of law is such from that, if miscarriage of justice may follow or is followed. In the matter of trial of suit every party has got right to lead evidence to prove the case and to make out a case pleaded, and that further a party is entitled to cross-examine the witness produced by his adverse party in order to show that the evidence produced by the adverse party is false or incorrect as well as in order to test the veracity of the adverse party's evidence. What is the meaning of adverse party. It has to be examined in the contest of the pleadings and circumstances of each case. "section 137 of the Indian Evidence Act reads thus the examination of a witness by the party who calls him shall be called his examination-in-chief. The examination of a witness by the adverse party shall be called his cross-examination. The examination of a witness, subsequently to the cross-examination by the party who called him shall be called his re-examination". Section 137 of the Evidence Act reveals that there are three stages in the examination of the witnesses. (1) Examination of a witness by the party who calls him which shall be the examination-in-chief, and second is cross-examination i. e. examination of a witness by the adverse party and thirdly re-examination. Section 138 of the Evidence Act provides that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined Tous right to cross-examination is there. The question is wnether the applicant could be taken as adverse to defendant 1 so to be entitled to cross-examine the d. W. 2 in the context of the facts of the case. The question is wnether the applicant could be taken as adverse to defendant 1 so to be entitled to cross-examine the d. W. 2 in the context of the facts of the case. The plaintiff's case has been that the defendant 1 borrowed certain money from the plaintiff for the firm and the suit was filed against the firm mentioned in the plaint, name of person is defendant 1 is mentioned as Managing Director. The defendant 2 got himself impleaded in the case and his case is that defendant 1 could not borrow the money except with the consent of other parties i. e. other partner and therefore question is whether the defendant 1 had right to borrow money on behalf of the firm or did he borrow it in his personal capacity. In the context of that plea or issue in dispute the defendant 2 was and could be taken to be adverse to the claim of defendant 1 and when defendant 2 claimed adversely to that claim of defendant 1, there is adversity inter se the interests of the parties i. e. , defendant 1 and defendant 2 and therefore defendant 2 was adverse party to defendant 1 namely d. W. 2. Being a adverse party, defendant 2 had the right to examine i. e. , to cross-examine the defendant 1 i. e. , D. W. 2. In my opinion the learned Trial Court on the basis of the wrong decision to the effect that the defendant 2 had no right to examine or to cross examine the defendant 1 acted illegally and not in accordance with law in rejecting the defendant 1's application for permission to examine i. e. , to cross-examine D. W. 2 i. e. , defendant 1 and it is order of rejection which definitely has got consequence which may result in mis-carriage of justice to the parties. As the defendant 2 is not allowed to cross-examine and to show by cross-examination of defendant 1 i. e. , D. W. 2 that no loan could be borrowed by defendant 1 then naturally after his depriving of him opportunity of show by cross-examination of d. W. 2 that his evidence or testimony was not true and was not worthy or trust, the defendant 2, on one hand is likely to be made subject to decree that may be passed only on the admission of defendant 1. In this view of the matter, I am of the opinion that the order by the Judge of Small Causes Court rejecting the application for defendant 2 for permission to examine or cross-examination defendant 1 is the result of Subordinate court's act illegally and not in accordance with law and as such the order impugned is liable to be set aside. This revision is allowed. The Court below is directed to allow defendant 2 to cross-examine defendant 1. The costs of the revision petition are to be borne by the parties themselves. --- *** --- .